Pokhojoe v Lesotho Brewing Company (LC 66 of 0) [2002] LSLC 11 (5 August 2002)

IN THE LA BO U R COU R T OF LE S O T H O CA S E NO LC 66/00 HELD AT MA S E R U IN THE MATT E R OF: MAL E R E N G PHO K O J O E APPLI C A N T AND LE S O T H O BRE W I N G CO M P A N Y RE S P O N D E N T ________________________________________________________________________ JUDGMENT ________________________________________________________________________ This matter was heard on the 8th November 2000. It was heard again on the 25th October 2001 when it was finalised. When it was initially heard, it was before the President and learned panellists Messrs Lieta and Lerotholi. However, on the 25th October 2001 Mr. Lieta had taken ill as such he could not be in attendance. In the light of the apparent seriousness of his illness the Court, after consultation with Counsels resolved to proceed and finalise this matter in terms of rule 25(2) of the Rules of the Court which permits the remaining members of the Court to dispose of the case if in the course of the hearing a vacancy arises, providing the remaining members constitute the majority of the original membership. The applicant was employed by the respondent as a tea lady/cleaner on the 20th August 1986. In November 1999 the canteen, in which section she now worked as a kitchen assistant, was outsourced and taken over by a private company. All the workers who had been working in that section were retrenched by the respondent and taken over by the new company at much reduced salaries and with loss of several benefits to which they (the workers) were entitled while still under the employ of the respondent. Six months after being employed by the new company the applicant launched the present proceedings demanding that: Applicant’s retrenchment by respondent be declared null and (a) void. (b) Applicant be reinstated forthwith. (c) Applicant be paid emoluments with effect from date of dismissal to date of reinstatement less what she has earned in her present job. (a) Further and/or alternative relief. The grounds upon which the applicant relies for the relief sought are covered in paragraphs 8 to 10 of the Originating Application and they can be summarised as follows: (a) Applicant was neither heard nor consulted prior to the retrenchment. (b) (c) (d) Applicant was never consulted about being transferred from the position of tea lady/cleaner to that of canteen assistant. The conditions in the new employment are worse than those applicant enjoyed while still employed by the respondent. It cannot consequently be said that applicant was offered alternative employment. Applicant was wrongly retrenched as kitchen assistant because she infact is a tea lady/cleaner a position which has not been affected by the retrenchment exercise. At the trial two witnesses testified. They were the applicant herself and Ms Mphamo Tente who testified on behalf of the respondent. It must be stated that in their answer the respondent gave a detailed account of the steps taken leading up to the retrenchment of the applicant. They had shown that the process of consultation had started on 2nd August 1999 when a company Renewal Committee made up of management and workers’ representatives was set up. The Committee had several meetings, minutes of which were posted on notice boards so that workers could have first hand account of what was going on in the Renewal Committee. This, the respondent state, was in addition to report back meetings which representatives of the workers were obliged to hold with the workers. At the meeting of the 17th August 1999 it was decided that the situation had deteriorated so much that manning levels had to be reviewed and that certain departments had to be outsourced. At the meeting of the 26th August it was reported that the canteen was one of two departments that would be outsourced and that the “affected employees had already been told.” It is significant to note that in her testimony the applicant did not utter a word to rebut these allegations. Furthermore, she did not say any thing to substantiate her claim that her retrenchment is in any way irregular. Indeed when she was asked under cross-examination if she never knew about the Renewal Committee she started by saying she did not know it. But when she was taken through the specific alternative steps that the Renewal Committee suggested in order to avert retrenchment, she said she recalled the committee reporting to the workers about those matters. She conceded knowing the workers’ representatives and those representatives reporting to them that the company was trying to save money by freeing recruitment and withdrawing of financing of Christmas parties among others. Asked further if she recalled Ms Tente having a meeting with them (canteen staff) where she informed them of their retrenchment, she said she recalled such a meeting. It accordingly came as no surprise that at the start of her address Ms Mpopo said she was no longer pursuing the legality of the retrenchment because that was not proved and infact the applicant’s concession on the process adopted prove that the exercise was fair. Applicant’s evidence centered around her position as tea leady/cleaner and her alleged transfer to the canteen as kitchen assistant. Her testimony is that she was employed as tea lady/cleaner, Managing Director’s department. In 1997 one Agnes Makhata who did the same job as hers but who was then working at the canteen was brought to her section to work with her by the Personnel Manager, who told her that she was being brought there temporarily because she had problems with their supervisor at the canteen. She avers that when the then Managing Director, Mr. Roger Smith left and the new one Mr. Marriot came in things changed. Mr. Marriot is said to have said that it was improper for one department to have two cleaners. She avers further that the Personnel Manager told her that since Agnes had a conflict with the supervisor at the canteen she must be the one to move while she attempted to solve their problem. She was then moved to the canteen. In 1998 she allegedly had a problem with the canteen supervisor as well, which she reported to the Personnel Manager who said she should return to her job because the job she was doing at the canteen was not hers and there was nothing written down, presumably to validate the transfer. Applicant says she waited for the Personnel Manager to tell her when to go back but this was not to be. She says she went for the second time but was told by Ms Tente the Industrial Relations Manager that the Personnel Manager had said she cannot choose where she should work. The situation remained like that until November 1999 when she was served with a letter of retrenchment together with the rest of the workers who were working in the canteen. As Mr. Daffue for the respondent argued the determination of this matter rests on the truthfulness of the witnesses. It should be mentioned that the respondent denies the applicant’s version that her transfer was temporary to allow time for the Personnel Manager to resolve a conflict between Agnes and her supervisor. Respondent’s version as given by the then Industrial Relations Manager is that applicant was transferred to the canteen partly because she was under utilized and the new duties which were to be added to her position were beyond her ability to cope. Secondly, she was incompetent to perform those functions to which management felt more responsibilities were to be added. They produced applicant’s performance appraisal form for 1996 which showed that she was just an average worker. In 1995 she had actually been issued a written notice for unsatisfactory work. In our view Ms Tente’s version is not only plausible, she herself was a clear, consistent and unambiguous witness. Furthermore, her version is supported By the documents already referred to. The fact also that the applicant worked in the canteen from April 1997 to the end of November 1999 negates any notion of temporaries in the transfer. This transfer was further authenticated by the filling of the Personnel Master Data Form (Annexure “P” to the Answer) which showed that the applicant was being moved from Human resources to the Kitchen as canteen assistant. Indeed the Personnel Manager’s response to applicant’s request to be returned to her “job” that applicant cannot choose when she wants to work makes it clear beyond doubt that applicant’s move to the canteen was not temporary. On the contrary applicant’s testimony is bare allegations. It is not supported by a single document. If anything, available documentation contradict her version. For instance annexure “P” to the Answer which they call change of status form shows that she was formally moved from human resources to the canteen. Annexure “O” which is her personal record shows that she was tea lady/cleaner from 1986 to March 1997 and that from April 1997 to the time of her retrenchment she was canteen assistant. Her 1997 performance appraisal (annexure”S”) already shows her position as kitchen assistant. Applicant’s testimony that she was, till the time of her retrenchment a tea lady cannot be true in the face of such overwhelming evidence to the contrary. Indeed she has every reason to be untruthful because had she not been transferred in 1997 she would still be working because as she says her former position as tea lady has not been affected by the retrenchment exercise. Applicant’s case on the papers is also that she was not consulted about her transfer from human resources to the canteen. Even in arguments Ms Mpopo for the applicant pursued this point relying on the High Court decision in Selikane and 33 others .v. Lesotho Telecommunications Corporation 1999–2000 LLR-LB 127. It must be stated that the submission was totally misconceived because evidence led on both sides does not support this argument. The applicant in her testimony said the Personnel Manager called the two of them namely herself and Agnes and told them that the policy is not to have two cleaners in one department. She then requested applicant to be the one to move because there was allegedly a conflict between Agnes and the canteen supervisor. If these facts be correct applicant was clearly consulted. Ms Tente’s testimony was that the applicant was called by herself. The Personnel Manager and the canteen supervisor and informed her of the transfer, in order to give her the Accordingly, by all accounts, opportunity to try something else. irrespective of which version represents the true facts, the applicant was consulted. Applicant’s argument that she was wrongly retrenched as part of the canteen staff because her position was that of tea lady/cleaner Managing Director’s office cannot in the light of the findings we have made succeed. In particular we have found that she was transferred to the canteen thereby making her the kitchen employee in April 1997. Equally baseless is the argument that the conditions at the new company that now employs her are worse than those obtaining while she was employed by the respondent. This is baseless firstly, because it is an integral part of the case challenging the fairness of the retrenchment which has been abandoned. Secondly, the employer faced with a retrenchment exercise is required only to take steps to avoid retrenching and such steps may include finding employees alternative employment. When such alternative employment is found there is no obligation to guarantee maintenance of similar conditions and terms as in the previous employment. Infact it is a take it or leave it situation. An employee is free to decline the alternative employment if she feels the conditions of that new employment are unbearable. For these reasons we are of the view that there is no merit in this application. It is accordingly dismissed with costs. THU S DON E AT MA S E R U THI S 5TH DAY OF AUG U S T, 2002. L. A LETHO B A N E PRE S I D E N T P. K. LER O T H O L I ME M B E R I AG R E E FOR APPLI C A N T : FOR RE S P O N D E N T: M S MPO P O MR DAFFU E